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Hart and
Stewart File to |
| On September 19, 2005 the attorneys for Brig Hart and Kenny
Stewart filed a motion with the court to declassify the documents relating to the issue of
arbitration. No doubt if the information becomes public, others victims of the Quixtar arbitration agreement might be able to also appeal their cases and obtain a public forum for their complaints. From the motion:
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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI ST. JOSEPH DIVISION
1. Plaintiffs file this Motion to “declassify” the briefs and supporting exhibits on the issue of arbitrability pursuant to ¶ 15 of the Court’s March 2, 2005 Amended Protective Order (Doc. 172), which provides that any Party may apply for relief from that Order. 2. On September 16, 2005, this Court issued its Order denying Defendants’ Motion to Dismiss, or in the Alternative, to Stay the Case and Compel Arbitration (Doc. 201). Therein, the Court held, in part, the Amway arbitration agreement to be procedurally and substantively unconscionable. 3. As the Court is well aware, the parties engaged in significant discovery on the
issue of arbitrability, culminating in extensive briefing with supporting exhibits.
Notwithstanding this Court’s admonishment that the Protective Order not be abused,
Defendants designated virtually every single fact and document relative to this issue
“confidential,” and thus subject to the Protective Order. Accordingly, all
briefs and exhibits on the issue of arbitrability 5. With respect to category (a), Plaintiffs are cognizant of the sensitivity of prior
conciliations/arbitrations, and are not seeking relief in this Motion for information
relating to same. The only discovery encompassed by this category is found at Exhibit
‘C’ to the Affidavit of R. Dan Boulware, attached as Exhibit # 8 to
Plaintiffs’ Suggestions in Opposition to Defendants’ Motion to Dismiss, or in
the Alternative, to Stay the Case and Compel Arbitration 6. The briefs and remaining exhibits, however, simply do not fall within any category
of documents that may properly be deemed confidential, and thus should not be afforded the
safeguards under the Protective Order. Simply stated, that discovery related to the
development, implementation and enforcement of the Amway arbitration program, and the
“tools business” as a whole. A significant amount of that information is/was
public knowledge, such as the use of JAMS as the arbitration administrator, the identity
of JAMS neutrals, and the rules 7. There is a strong public policy that “pretrial discovery must take place in the
public unless compelling reasons exist for denying the public access to the
proceedings.” Culinary Foods, 151 F.R.D. at 300 (citations omitted); see also Zenith
Radio, 529 F. Supp. at 895-99 (discovery materials fall within the public’s common
law right of access to judicial records). As a result, “[s]ecrecy is the exception,
not the rule.” Citicorp v. Interbank Card 8. Further, judicial records are presumptively subject to public inspection. Greater
Miami Baseball Club Ltd. P’shp. v. Selig, 955 F.Supp. 37, 39 (S.D.N.Y. 1997), citing
United States v. Amodeo, 71 F.3d 1044, 1047 (2d Cir. 1995) ("Amodeo II ");
United States v. Amodeo, 44 F.3d 141, 146 (2d Cir. 1995). The presumption is at its
strongest when the documents in question, as here, have been submitted as a basis for
judicial decision making. Greater Miami, 955 F.Supp. at 39 (emphasis added); Joy v. North,
692 F.2d 880, 893 (2d Cir. 1982), cert. denied sub nom. Citytrust v. Joy, 460 U.S. 1051
(1983). Many cases have recognized that the public has 9. The Court’s September 16, 2005 Order and, in particular, the finding of
unconscionability, has significant implications for the public at large. Arbitration has
become commonplace as an alternative to litigation, and there exists a strong federal (and
state) policy favoring the enforcement of arbitration agreements. Judicial findings of
unconscionability of arbitration agreements, however, are anything but commonplace, and
the public would be well 10. Further, this Court’s Order potentially impacts the hundreds of thousands of Amway/Quixtar distributors who are purportedly required to arbitrate under the Amway arbitration program. The Amway arbitration agreement, as this Court noted, was offered on a “take it or leave it” manner, and without any opportunity for negotiation. Amway’s influence over the JAMS’ arbitrators rose to the level of substantive unconscionability. Further, since the inception of arbitration in 1998, Amway has never lost in JAMS-administered arbitrations (save a few counterclaims). The evidence supporting these findings would not only be of great import to those distributors who have heretofore challenged the Amway arbitration provision (and failed), but also to those who may yet challenge the same. Amway has successfully used its unconscionable arbitration program as a shield to protect it from its distributors and to keep it out of the public eye for nearly eight years. However, simply because Defendants have selfdesignated documents and discovery as confidential in this matter does not equate the same into a protectable trade secret or otherwise. If anything, the details of an arbitration program mandated in lieu of court, such as Amway’s, should be open for public scrutiny, rather than cloaked with confidentiality as it has been by these Defendants since 1998. 11. Plaintiffs are not requesting this Court to otherwise modify or even nullify the
existing Protective Order. Rather, they request that the underlying briefs and exhibits
supporting the Court’s September 16, 2005 Order be declassified, with the exception
noted in ¶ 5, supra. WHEREFORE, Plaintiffs respectfully request this Court to declassify
all briefing and supporting exhibits relative to arbitrability which have previously been
designated as
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